In order to conduct grievance hearings fairly as specified in the Code of Practice for Disciplinary and Grievance procedures and organization may need to carry out a grievance investigation to establish the facts. A thorough, well-conducted investigation may prevent cases of constructive unfair dismissal and reduce the likelihood of a Tribunal claim.
Once an employee raises a grievance - usually in writing - a formal meeting should be set up (with the nominated investigator) to discuss the issue(s) raised in further detail as soon as possible. It is important to remember that once an employee raises a grievance an employer has a duty to investigate it and if this is not done swiftly then there is a risk that the employee could suffer from even greater stress or anxiety, possibly resulting in prolonged absence from work. Delay can also lead an employee to lose confidence that the company has the ability to resolve the matter fairly and therefore they decide to leave and lodge a claim with the Tribunal.
Having met with the employee and considered the grievance the investigator should determine what further action is required including whether other employees should be interviewed. Any investigation and interviews should be limited (but sufficient) to allow the investigator to determine whether the issue(s) raised have substance to them. This will not only assist with timescales, but will ensure confidentiality is maintained and once the grievance has been dealt with should enable the employee able to continue in the workplace.
Individuals who meet with the investigator have the right to be represented by either a work colleague or union official (a statutory right), or anyone else if this is specified in the organisation's terms of employment.
The role of the investigator is to:
Take formal statements - from witnesses and concerned parties, ensure that the witnesses understand that this evidence is confidential, but that it may ultimately be used by a disciplinary panel, should a grievance be upheld. The investigator must determine - in the case of eye witnesses - where the witness was in order to see the events, the time of day and why they were there at the time. It is best practice to get any witnesses to sign and date their statements. Caution must be exercised if a witness wishes to remain anonymous. In such cases the importance of their evidence should be explained to the witness but if, despite reassurances, they still do not want their identity disclosed, it may be possible to edit their written statement in a way that protects their identity. If the witness remains dissatisfied or if he refuses to allow his evidence to be used, it is prudent to disregard that evidence.
Timescales - these should be realistic and flexible, but sometimes initial interviews may uncover other issues which may require further investigation and therefore prolong the process. If there is to be a delay the employee who raised the grievance must be advised of this and how long it is anticipated the delay will be.
Collect evidence - collect any relevant documents or material evidence that may be available.This may include CCTV footage or recordings, emails, correspondence, recordings of telephone conversations (bearing in mind that employees MUST be aware that calls are being recorded).
Keep records - of the investigation, interviews conducted, the correspondence, witness statements the Hearing and its outcome. Unfortunately many cases have shown that records have not been kept and such organizations have been unable to demonstrate that a fair process was followed at any subsequent Tribunal Hearing.
Produce a report - once the investigation has been concluded the investigator should produce a written report, which summarizes the issue(s) investigated, facts that have been established and include with this any witness statements and supporting documentation. The investigator should also make some recommendations (but not a determination) which may include counseling, disciplinary action against another employee etc. The recommendations may also suggest a review of procedures or implementation of training etc.
Outcome - the outcome of the investigation should be advised to the employee by their Manager or HR adviser in writing. The employee should also be advised to whom they can appeal in writing within 5 working days, should they be unhappy with the initial decision.
Appeals - if the right of appeal is exercised by the employee a further hearing should be arranged. If the resources of the organisation are such that the appeal chair can be a person who was not involved in the original grievance hearing, then this should occur. Whenever possible the appeal should be chaired by a person from a more senior level of management. The employee should be given, once again, the opportunity to state his case and put forward his concerns.
The emphasis on the appeal is to ensure the grievance hearing was carried out correctly, that evidence was gathered and interpreted appropriately, that the employee was given the opportunity to present his case fully and that the whether the original decision was or was not appropriate.
Further actions - should the outcome of the grievance be upheld and give rise to the need for disciplinary action against another employee(s), then the disciplinary procedure should be invoked and treated as a separate issue. Confidentially should be maintained at all times and the employee who raised the grievance in the first instance should not be advised of the disciplinary actions taken against colleague(s).
For more information, please refer to the Codes of Practice.
JACS recognises that it is often difficult for small employers (i.e. those with a single manager/owner and a very small number of employees) to conform to all the recommendations below. In particular, such employers may find it impossible to hold a grievance appeal using a different person to chair the appeal than the person who took the decision in the first place. Similarly, the size of an organisation may make it inevitable that the same person undertakes the grievance hearing having previously acted as the investigator in the matter. In the Employment Law the Tribunal is able to consider the size and administration resources of the organisation in determining whether the employer acted reasonably. Providing employers in small organisations make every effort to ensure fairness, despite the limitations of their resources, the Tribunal should take that into account.
JACS Jan 2014